Norwegian Supreme Court Prioritizes National Law for Restitution Compensation in the Fight Against Child Marriages
Under Norwegian criminal law, entering into or assisting with a child marriage or a marriage-like relation is prohibited. A judgment of the Norwegian Supreme Court (HR-2024-2161-A of 25 October 2024) a man and his parents, all residing in Norway, were found guilty of this crime after the man had entered a marriage-like relation with a 14 year old girl in Bulgaria. In the criminal case, a claim for restitution compensation was filed.
The Supreme Court held that the substantive law must be determined not by the general lex loci damni rule but by the case’s connections to Norway and Norway’s strong interest in combating child marriages.
Background
In 2021, a 23 year old man came in contact with a 14 year old girl on the internet. They were both originally from Bulgaria, but the man resided in Norway. Shortly after their initial contact, the man traveled to Bulgaria to meet the girl. A few weeks thereafter the man and the girl took part in an unofficial weddinglike ceremonial act in Bulgaria where they exchanged rings. The girl thereafter accompanied the man and his parents to Norway. Upon arriving at the airport in Norway, the group was stopped at customs. As a consequence, Norwegian police filed a report of concern to the childcare authorities. After the childcare authorities home inspection, the girl was immediately placed in a childcare institution before she was sent back to Bulgaria. Criminal law proceedings were initiated against the man and his parents for violation of Section 262 of the Norwegian penal code that criminalizes the entrance and the assistance of entrance of a marriage or a marriage-like relation with someone younger than 16 years. In addition to the criminal liability, a private law claim for restitution compensation was also filed by the court.
The Supreme Court’s Judgment
The Supreme Court held in its judgment that both the man and his parents were guilty under Norwegian criminal law. Notably, while Norway typically requires dual criminality for crimes committed abroad, child marriage and marriage-like relations are exceptions to this rule. As this blog is devoted to private international law, further emphasise will not be put on the criminal act, but on the private law restitution compensation. For the tort liability, the Norwegian Supreme Court first held that the matter was subject to Norwegian jurisdiction under Article 5 paragraph 4 of the Lugano Convention with reference to the general forum domicilii rule in Article 2 of the same convention. As the crime was committed abroad, the Supreme Court noted that the conflict of laws question must be addressed too.
Under Norwegian law, a claim for compensation related to a criminal act is a non-contractual private law matter. There are no statutory Norwegian conflict of law rules for such situations. However, in 2020, the Norwegian Supreme Court assessed a similar conflict of law situation in a case where an American woman had been raped by a Norwegian man on a cruise ship on international waters (Norwegian Supreme Court’s judgment HR-2021-995-A of 22 October 2020). In that judgment, the Supreme Court held that the general conflict of laws rule for non-contractual obligations in Norwegian private international law is the law of the country where the damage occurred (lex loci damni). As this principle is not a hard rule in Norwegian law, the Supreme Court held that the severe breach of personal integrity caused by rape justified an exception. Therefore, the Supreme Court held that the law applicable should be determined based on a centre of gravity test.
Referring to the 2021 cruise ship rape judgment, the Supreme Court applied a centre of gravity test for the compensation claim. It rejected the general lex loci damni rule due to the unique circumstances of the case. In the centre of gravity test, the court held that the criminal defendants’ Norwegian domicile as well as the fact that the victim was brought to Norway were connecting factors that motivated the application of Norwegian law in the case. Also, the court held that the Norwegian interest in fighting child marriages in itself motivated the application of Norwegian law for the compensation claim. With that motivation Norwegian law was applied and the compensation was decided to 120.000 Norwegian kroner (approximately 12.000 euros).
Comment
The judgment highlights that conflict of law rules are not always ‘neutral’ or apolitical, particularly when national interests are at stake. Norway’s possibility to do so is however based on the fact that the conflict of law rules are national and based on caselaw. It is doubtful whether a similar solution could be made in an EU member state that is bound by the Rome II Regulation. The escape rule in Article 4, paragraph 3, requires that it shall be “clear from all circumstances of the case that the tort/delict is manifestly more closely connected with a country other than [the lex loci damni] or [the law of the country where both parties have their habitual residence]”.
Even if politically motivated exceptions like the Norwegian one might be very tempting, one must at least consider how such national deviations might undermine the principle of harmonized decisions in private international law and risk encouraging forum shopping. On the other hand, that problem is possibly already ruled out in a matter on restitution compensation in relation to a crime for which double criminality is not required.